District Court New South Wales Medium Neutral Citation: R v Simmons [2019] NSWDC 520 Hearing dates: 02, 03 September 2019 Date of orders: 03 September 2019 Decision date: 03 September 2019 Jurisdiction: Criminal Before: Grant DCJ Decision: An aggregate term of imprisonment for a period of three years which is to commence on 7 June 2019 and expire on 6 June 2022. The non-parole period is 22 months and it is to commence on 7 June 2019 and will expire on 5 April 2021. Catchwords: CRIME — Property offences — Break, enter and Steal Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Firearms Act 1996 Cases Cited: Book v R [2018] NSWCCA 58 R v Ponfield [1999] NSWLR 327 Category: Sentence Parties: Regina (Crown) Raymond Simmons (Offender) Representation: Counsel: Brown (Crown) A Hallas (Offender) File Number(s): 2014/00185745; 2015/00312242; 2018/00181008 Judgment INTRODUCTION 1. On 17 November 2016 the offender, Raymond Simmons, appeared before Hanley SC DCJ for sentence. He had pleaded guilty to the following offences: 1. Reckless wounding pursuant to s 35(4) of the Crimes Act which has a maximum penalty of seven years imprisonment and specifies a standard non parole period of three years. 2. Carry a firearm in a dangerous manner pursuant to s 93G(1)(c) of the Crimes Act with a maximum penalty of ten years imprisonment and there is no standard non-parole period applicable. 3. Possess a prohibited firearm pursuant to s 7(1) of the Firearms Act which has a maximum period of 14 years imprisonment and a standard non parole period of four years. 1. In addition to those matters he appeared before Hanley SC DCJ in relation to a breach of a s 9 bond imposed by Acting Judge Delaney on 21 August 2013, when he appealed against the severity of a sentence imposed at the Windsor Local Court on 16 July 2015, being a s 12 suspended sentence for 12 months in relation to a break and enter of a dwelling house on 23 June 2016. His Honour imposed the following sentences: 1. Reckless wounding; 18 months imprisonment suspended. 2. Carry a firearm; 18 months imprisonment suspended. 3. Possess prohibited firearm; fixed term of imprisonment dating from 23 October 2015 and expiring on 18 December 2015. The sentence has been served. 1. His Honour was satisfied that the breach had been made out of the s 9 bond, his Honour set aside the bond and sentenced the offender to 18 months imprisonment which was suspended. All of the suspended sentences were made concurrent, they were due to expire on 16 May 2018. 2. The offender comes before me for sentence for three offences which were committed on 11 April 2018, 13 April 2018 and 16 April 2018. Those offences breached the suspended sentences. Mr Hallas who appeared for the offender admitted the breach. 3. I propose to resentence the offender in relation to the suspended sentences that were imposed by his Honour, Judge Hanley SC. The offender has pleaded guilty to the following charges: 1. Aggravated break enter and steal contrary to s 112(2) of the Crimes Act 1900 with a maximum penalty of 20 years and a standard non parole period of five years. 2. Attempt to dispose of stolen property, sequence 2, contrary to s 188(1) of the Crimes Act with a maximum penalty of ten years. 3. Attempt to dispose of stolen property contrary to s 188(1) of the Crimes Act, maximum penalty ten years. 1. The offender has asked me to take into account one matter on a form 1, namely person previously convicted of an indictable offence commit further indictable offence contrary to s 115 of the Crimes Act which carries a maximum penalty of ten years. I do take that matter into account and have signed a form 1. 2. The maximum penalties and the standard non parole period are important guideposts in the assessment of sentence. A judge should steer by the maximum penalty but not aim for it. The accused has been in custody since 7 June 2019. The Crown accepts that that date is an appropriate sentence commencement date even though the offender was sentenced to two months imprisonment in the Local Court for goods in custody on 6 August 2019 which was backdated to 7 June 2019. THE PLEA OF GUILTY 1. The guilty plea and the timing of the plea are to be taken into account on sentence pursuant to s 21A(3)(k) and s 22 of the Crimes (Sentencing Procedure) Act 1999. The guilty plea was indicated and entered at an early stage in the Local Court. The Crown accepts that the plea was entered at the earliest reasonable opportunity and accordingly the full 25% discount is applicable. The indicative sentences that I will announce in these reasons for judgment will have been discounted by 25%. AGREED FACTS 1. An agreed facts document can be found at tab 2 of exhibit A. I will summarise those agreed facts. Costco Marsden Park is an international wholesale and retail chain. About 1:30am on 11 April 2018 the offender and an unknown co-offender are captured on Costco's CCTV footage running along the rear retaining wall area separating the Costco car park from the private road of a mosque. The two scaled down the retaining wall using a light post and run over to the southern wall. Using an angle grinder, one of the offenders cut into a corrugated wall sheet while the co-offender keeps watch. An offender grinds off the bolts holding in the wall sheeting and pulls back one of the panels. This took approximately 15 minutes. 2. Once the sheet was pulled back, the accused and the co-offender are captured at 1:55am crawling into the wall cavity and disappearing off camera. Once inside the two males climb up the wall cavity and wall across scaffolding to the merchandise pick-up cage. Between this time and 3.38am the accused and his co-offender move in and out of Costco via the hole in the wall they had cut out. At about 4:09am the accused and the co-offender are captured on external CCTV climbing out of the hole in the wall of the building and carrying liquor back up the wall and off towards where the Corolla, their motor vehicle, is parked. They return to Costco at about 4:19am and re-enter the cut hole in the wall. 3. The males climb up the wall and walk over to the MPU area. The accused climbs down a hole that has been cut into the cage roof and stands on a filing cabinet and using an angle grinder attempts to cut the padlock of a jewellery safe using his black iPhone 7 Plus as a torch. While attempting to force the lock of the safe the movement triggers the motion sensor and activates the light in the MPU area. The accused continues to attempt to force entry to the safe for about a minute before walking over to a shelf containing various Apple iPhone X, 8s and iPads. The accused removes eight iPhone X, five iPhone 8s, nine iPad Pros, eight iPad Gold and one iPad mini. 4. The accused placed the items in a pink Aldi shopping bag which is dropped into the MPU area before climbing back up the hole cut into the roof. In summary the property stolen during the break in was to the value of $34,286.91. Sequence 2; attempt dispose of stolen property, s 188(1). 1. At about 11:43am on 13 April 2018, the accused offered an iPhone 256GB for sale for $1,200 in the Penrith area on the Gumtree website. The account was linked to the accused as his registered phone number (the stolen phone) was included on the advertisement as the contact number. The disposal was scheduled to occur on 13 April at a restaurant in North St Marys. It is unknown whether this sale took place. Sequence 3; attempt to dispose of stolen property, s 188(1). 1. At about 12:40pm on 16 April 2018, the accused offered an iPhone 8 64GB for sale for $800 in the Penrith area on Gumtree website. The phone was still sealed, this iPhone 8 is also proceeds of the break and enter at Costco on 11 April 2018. Sequence 5; commit s 114 offence having previous convictions, s 115 on a form 1. 1. The accused has been previously charged with indictable offences being aggravated break and enter in 2013 and a reckless wounding and firearm offences in 2015. OBJECTIVE SERIOUSNESS 1. Break, enter and steal has long been regarded as a serious crime by the legislature and the degree of criminality involved should not be underrated by sentences. General deterrence is a particularly important sentencing consideration for break, enter and offences. The Courts need to send a very clear message to others who may be minded to conduct themselves in a similar fashion, that if they come before the Courts they will be punished severely. 2. It was a commercial burglary involving planning. The offender had sought out and obtained the tools for the break-in. It was a two-man operation. It matters not that the primary intention of the offender was to steal alcohol for his father's wake. The value of the property stolen was not insignificant amounting to $34,286. 3. Included in the items were a number of phones which the offender attempted to sell. The Court needs to send a message to other would be burglars that sentences of imprisonment will be imposed. I assess the objective seriousness below the mid-range. SUBJECTIVE FEATURES 1. The offender is 24 years of age, having been born on 16 May 1995. The offences were committed in the early hours of 11 April 2018. He was 23 years of age on the date of these offences. He is in a permanent relationship with Tiarna Considine and they have two children aged two years and an infant, two weeks. He was in custody at the time of the birth of his second child. His mother Jodie Simmons is in support of both himself and his partner. A CT scan dated 5 June 2017 reports disc bulge at A4/L5 and at L5/S1. Shortly before the commission of these offences his biological father Lesley Galway was in custody on drug charges bail refused. Whilst in custody he was diagnosed with a terminal illness. 2. He was subsequently granted bail on compassionate grounds and he died shortly after he was granted bail. I have before me two sentence assessment reports. One dated 7 December 2018 and one dated 28 August 2019. In the sentence assessment report dated 7 December 2018 the author says that after he finished school Mr Simmons commenced an apprenticeship in the roofing industry. He did not complete the apprenticeship and had to stop work due to a workplace injury last year. The offender gave evidence before me that he fell from scaffolding and injured his back which of course has been confirmed by the CT scan. In relation to substance use, the offender admitted the use of marijuana for a number of years. 3. Under the heading of mental health the author says that Mr Simmons' mother advised that he had behavioural issues whilst he was at school. She further advised that both she and Mr Simmons father were diagnosed with mental health issues and the offender displays similar symptoms. She advised that she has in the past attempted to have him undergo mental health assessments however he has failed to keep these appointments. In the sentence assessment report dated 28 August 2019 the author says that Mr Simmons reported stable accommodation with his partner and their two young children. 4. He stated that he benefits from the support of his partner, mother and brother. He highlighted his children as his protective factor and underlying motivation in his determination to lead a prosocial life. The author says that Mr Simmons has a minimal history of antisocial behaviour consisting of driving offences, a break and enter and a weapon related offence since 2013. 5. Under the heading of 'attitudes' Mr Simmons accepted responsibility for his actions stating that he was not thinking at the time of his offences. Mr Simmons described his conduct as a cycle of antisocial behaviour that was stupid and impulsive. 6. Under the heading of 'substance abuse', Mr Simmons described copious illicit drug, prescribed medication, steroids and alcohol misuse at the time of his offending behaviours. He recounted numerous occasions in which he blacked out from use. Subsequently Mr Simmons cited that his misuse was further exacerbated by the death of his father and his inability to address his grief and loss. Mr Simmons identified his need to remain abstinent which he claimed has remained true since his incarceration. He also highlighted the importance of engaging with substance abuse interventions or a residential rehabilitation program should he be released. 7. Under the heading of 'mental health', the author says Mr Simmons stated that he is diagnosed with mental health concerns. He reported that he was not adhering to his medication regime at the time of his offending and was self medicating with other prescribed medications to manage his symptoms. Mr Simmons stated that his non-compliance with medication was due to his ego thinking he knew better. Mr Simmons conveyed that it is imperative he remain engaged with treatment in order to adapt to lawful community life. Mr Simmons conveyed his willingness to engage with interventions to address his offending behaviour. 8. Mr Simmons has been assessed as a medium to high risk of reoffending according to the level of service inventory. The offender gave evidence before me and showed some insight but it would appear he has a long way to go dealing with his substance abuse including his overuse of medication. He has the support of his wife and mother. His wife was realistic when she gave evidence, she is cautious as to his prospects of rehabilitation. Perhaps now that his second child has been born he will start thinking of others as opposed to only thinking about himself. 9. He has been given chances in the past but has abused those chances by committing further offences. In my view his prospects of rehabilitation are bleak but his circumstances warrant a finding of special circumstances which is not opposed by the Crown. I find special circumstances due to the age of the offender, his first lengthy sentence of imprisonment, his substance abuse and the need for a longer period of parole to ensure his reintegration into the community. I accept the contrition and remorse expressed in his letter to the Court which was exhibit B. 10. In relation to the sentences imposed by his Honour, Judge Hanley SC, I have read his Honour's extensive reasons for judgment and do not intend to repeat the facts contained therein save to say that the offender in attempting to take a firearm from his friend, and he did not know that it was loaded at the time, caused the firearm to discharge shooting his friend in the face. It has haunted this offender ever since. The offender has also had issues dealing with the death of his father. He needs to concentrate on his wife and children and put an end to his offending. He needs to take positive steps. 11. Mr Hallas referred me to Book v R [2018] NSWCCA 58. It was a commercial break and enter in company of a Masters store. The total value of the goods stolen was about $700. In this case the total of the goods stolen was $34,286. In Book all of the property was returned, this has not been the case in this case. Mr Book was sentenced to two years, eight months with a non-parole period of one year and eight months after a 25% discount for his early plea. He appealed on the basis that the sentence imposed was manifestly excessive. The appeal was unsuccessful. Five years earlier Mr Book was dealt with in the Wagga Wagga District Court for break and enter in company for stealing and received a suspended sentence. 12. This offender's relevant prior history is 4 September 2014 Windsor Local Court a break enter dwelling house with intent to steal. Sentenced to community service order of 200 hours, that order was called up and was extended. On the 16 July 2015 in the Windsor Local Court it was called up a second time and the magistrate imposed a 12 month suspended sentence. On 21 August 2015, as a result of an appeal against the severity of the sentence, Acting Judge Delaney imposed a s 9 bond for a period of three years. On 17 November 2016, that bond was called up by his Honour Judge Hanley and the offender was sentenced to 18 imprisonment which was suspended. I have already discussed the other matters that were before his Honour which I will turn to shortly. 13. I have taken into account the guideline judgment in R v Ponfield [1999] NSWLR 327. The circumstances of aggravation in this offence are that the offender was in company of another person. It reflects the fact that more than one person is involved in the break, enter and steal offence. There were more than one set of hands at work in the commission of the offence and they were engaged in a common purpose. I have had regard to the use of tools, multiple entries to the premises, the quantity and the value of the items stolen, and the damage sustained to the property. The dominant sentencing consideration in this case are general deterrence and specific deterrence. 14. Specific deterrence is necessary due to the prior conviction of the offender for break and enter a dwelling house with intent to steal which was first dealt with in the Windsor Local Court on 14 September 2014. SENTENCE 1. Pursuant to s 53A of the Act I impose an aggregate sentence. In imposing that sentence I have taken into account totality and proportionality. The indicative sentences have been reduced by 25%. The sentences that had been imposed by Judge Hanley SC had been reduced by 25%. Those sentences will remain the same as will the concurrency within themselves. However, a degree of accumulation is warranted with those sentences with the sentences I am imposing. They are different offences and have no temporal connection with the current offences. 2. I refer the offender to the Drug Court for the making of a compulsory drug treatment order. However, I note that one of the offences upon which he was sentenced by Judge Hanley SC involved the use of a firearm which would make him ineligible. There is nothing in the offences for which I sentenced the offender that would make him ineligible. Ultimately it is a matter for the Drug Court to make the relevant assessment. Indicative sentences in relation to Judge Hanley SC are: * Reckless wounding; 18 months. * Carry a firearm; 18 months. * Break and enter; 18 months. 1. In relation to the matter before me, the aggravated break and enter, I impose an indicative sentence of 30 months and the matter has a standard non-parole period so I am obligated to indicate the indicative non-parole period. The indicative non-parole period is 18 months. 2. In relation to sequence 2, attempt to dispose of stolen property, the sentence imposed is three months but for the 25% discount it would have been a sentence of four months. 3. Sequence 3, attempt to dispose of stolen property, three months, but for the 25% discount it would have been a sentence of four months. 4. The aggregate sentence is one of three years which is to commence on 7 June 2019 and expire on 6 June 2022. The non-parole period is 22 months and it is to commence on 7 June 2019 and will expire on 5 April 2021. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 September 2019